Nos. 20-512, 20-520

In the Supreme Court of the United States __________

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Petitioner,

v. SHAWNE ALSTON, ET AL.,

Respondents. __________

AMERICAN ATHLETIC CONFERENCE, ET AL., Petitioners,

v. SHAWNE ALSTON, ET AL.,

Respondents. __________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

__________ BRIEF IN OPPOSITION

__________ STEVE W. BERMAN CRAIG R. SPIEGEL EMILEE N. SISCO Hagens Berman Sobol Shapiro LLP 1301 Second Ave., Ste. 2000 Seattle, WA 98101 BRUCE L. SIMON BENJAMIN E. SHIFTAN Pearson, Simon & Warshaw LLP 350 Sansome St., Ste. 680 San Francisco, CA 94104

JEFFREY L. KESSLER DAVID G. FEHER DAVID L. GREENSPAN Winston & Strawn LLP 200 Park Avenue New York, NY 10166 LINDA T. COBERLY Counsel of Record Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601 (312) 558-5600 lcoberly@winston.com

[Additional counsel on inside cover]

ELIZABETH C. PRITZKER JONATHAN K. LEVINE BETHANY L. CARACUZZO Pritzker Levine LLP 1900 Powell St., Ste. 450 Emeryville, CA 94608

JEANIFER E. PARSIGIAN Winston & Strawn LLP 101 California Street San Francisco, CA 94111

Counsel for Respondents

QUESTION PRESENTED Whether restraints that competing NCAA mem-

ber schools have agreed to impose in the name of “amateurism” should be exempt from challenge under the antitrust laws, as Petitioners contend, or whether they are subject to scrutiny under the rule of rea-son—a fact-based analysis that this Court and the courts of appeals have uniformly applied to agree-ments restricting competition among NCAA members and that the courts below undertook based on the particular facts established at trial in this case.

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TABLE OF CONTENTS Page

QUESTION PRESENTED ......................................... i

INTRODUCTION ........................................................ 1

STATEMENT ............................................................... 4

A. The Business of College Sports and theNCAA’s Ever-Changing Definition of“Amateurism” ......................................... 4

B. District Court Proceedings ................... 10

C. The Ninth Circuit’s Opinion ................ 14

REASONS FOR DENYING THE PETITIONS ........ 16

I. The decision below is entirely consistentwith this Court’s precedents. .......................... 16

II. The decision below does not implicate anyconflict among the Courts of Appeals. ............ 20

III. The decision below faithfully applied therule of reason framework. ............................... 24

IV. The decision below turns on fact-boundconclusions after a lengthy bench trial. ......... 25

V. The decision below has no implications forjoint ventures. ................................................. 26

VI. The ongoing legislative efforts in this areamake this case particularly unsuitable forreview. ............................................................. 29

CONCLUSION .......................................................... 31

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TABLE OF AUTHORITIES

Page(s)

Cases

Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012) .............. 20, 21, 22, 23

American Needle v. NFL, 560 U.S. 183 (2010) .......................................passim

Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1 (1979) .................................................. 28

Deppe v. NCAA, 893 F.3d 498 (7th Cir. 2018) .................... 20, 22, 23

Law v. NCAA, 134 F.3d 1010 (10th Cir. 1998) ........................ 8, 28

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007) .......................... 26

Maple Flooring Mfrs.’ Ass’n v. United States, 268 U.S. 563 (1925) .............................................. 26

McCormack v. NCAA, 845 F.2d 1338 (5th Cir. 1998) ........................ 20, 21

NCAA v. Board of Regents, 468 U.S. 85 (1984) .........................................passim

NCAA v. O’Bannon, 137 S. Ct. 277 (2016) ............................................ 11

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O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015) .......................passim

Ohio v. American Express Co., 138 S.Ct. 2274 (2018) ..................................... 24, 25

Race Tires America, Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57 (3d Cir. 2010) .................................... 23

Smith v. NCAA, 139 F.3d 180 (3d Cir. 1998) ............................ 20, 21

Other Authorities

Associated Press, Emmert: Ruling reinforced fundamentals of NCAA, ESPN (Apr. 4, 2019) ....................................... 13, 14

Br. for NCAA, O’Bannon v. NCAA, No. 14-16601 (9th Cir. Nov. 14, 2014), ECF No. 13-1 ............................................... 9

Fairness in Collegiate Athletics Act, S.4004, § 4(b) (2020) ............................................. 30

Ltr. from Power Five Comm’rs to Cong. Leadership at 1 (May 23, 2020), https://assets.documentcloud.org/documents/6933292/Power-Five-letter-to-Congress.pdf ..................................................... 29

Petition for Writ of Certiorari, NCAA v. O’Bannon, No. 15-1388, 2016 WL 2866087 (U.S. May 13, 2016) ................................................passim

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NCAA Board of Governors Federal and State Legislation Working Group, Final Report and Recommendations (Apr. 17, 2020), https://tinyurl.com/yxq8rtd9 .................................. 9

NCAA Mem. P. & A. in Supp. Summ. J., White v. NCAA, No. 06-cv-999 (C.D. Cal. Oct. 22, 2007), ECF No. 220 ................................................ 9

P. Areeda & H. Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, (4th ed. 2018) ............................................ 22, 23, 26

R. Dellenger, NCAA Presents Congress with Bold Proposal for NIL Legislation, SPORTS ILLUSTRATED (July 31, 2020), https://www.si.com/college/2020/07/31/ncaa-sends-congress-nil-legislation-proposal ........................................................... 29, 30

INTRODUCTION The petitions in this case largely repeat argu-

ments the NCAA made in a petition that this Court denied just a few years ago. In O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015), the Ninth Circuit up-held a district court’s application of the Sherman Act’s rule of reason to a particular set of facts, invali-dating restraints that the NCAA’s member schools had agreed to impose on compensation for the use of student-athletes’ names, images, and likenesses. Although both sides sought certiorari, this Court de-nied review. Both petitions in this case discuss O’Bannon at length.

This case is even less deserving of the Court’s at-tention. The decision below does not plough any new legal ground; it applies the same, well-established an-titrust standards to a different set of facts—here, facts relating to restrictions on benefits relating spe-cifically to the student-athletes’ education. As in O’Bannon, the courts below faithfully followed this Court’s precedents, including NCAA v. Board of Re-gents, 468 U.S. 85 (1984), which held that NCAA rules must be analyzed under the rule of reason. As in O’Bannon, the NCAA claims a conflict with other circuits, but a careful analysis shows that no conflict exists. As in O’Bannon, this case does not concern how antitrust law might apply to “joint ventures”—a structure that neither this Court nor the courts below have found applies to competitor schools within the NCAA. And—critically—since O’Bannon, Congress and state legislatures have begun to consider for themselves the question of player compensation and benefits in college sports. This legislative effort makes certiorari especially inappropriate.

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Since Board of Regents, this Court’s instructions have been clear: NCAA rules are subject to the rule of reason. This sensible rule of antitrust law requires courts to evaluate a restraint in the context of the market as it actually exists at the time. If a com-plaint does not plausibly allege an antitrust violation in a particular market—or if discovery does not re-veal any genuine dispute of material fact—the court may perform the necessary analysis on motions, without a full-blown trial. But nothing in Board of Regents requires that a court uphold NCAA rules without discovery or trial, based simply on the NCAA’s assertion that those rules are somehow linked to “amateurism.” That is what Petitioners seek—a declaration from this Court that such rules must be upheld “without fact-intensive rule-of-reason analysis.” NCAA Pet. 19. Board of Regents holds otherwise.

Indeed, applying the fact-based rule of reason is even more important today, given how much the facts have changed since Board of Regents. In the last 36 years, Division I basketball and Football Bowl Subdi-vision (“FBS”) football have become multi-billion-dollar industries. The NCAA and its member confer-ences and schools receive billions of dollars every year through the hard work, sweat, and sometimes broken bodies of student-athletes. Coaches, assistant coaches, and athletic directors take millions in sala-ries. Yet the schools have agreed among themselves to limit what student-athletes may receive for their work in generating these extraordinary revenues. The agreements among these schools represent a classic horizontal restraint of trade—an agreement among competitors to limit how much they will have to expend to compete for talent and labor.

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To be sure, some NCAA rules may be necessary to protect consumer demand for college sports as a dis-tinct “product.” But as a factual matter, the re-straints in this case are not. The trial record shows that the challenged restraints are cost-cutting measures, plain and simple, and not reasonably nec-essary to maintain consumer demand for college sports. As a result, the district court found that they constitute unreasonable restraints of trade.

The decisions below are modest in many respects. They apply only to NCAA restrictions on education-related benefits that schools may offer Division I bas-ketball and FBS football players—benefits like com-puters, science equipment, musical instruments, post-graduate scholarships, tutoring, study abroad, academic awards, and internships. In that sense, the injunction is of great consequence to the student-athletes whose work and sacrifice drive the multi-billion-dollar industry that is NCAA Division I foot-ball and basketball. But the injunction does not au-thorize so-called pay for play, which Petitioners argue would be the end of “amateur” sports. Nor does it re-quire any school to provide these kinds of education-related benefits or prevent an individual conference from restricting such benefits if it chooses. In short, it simply enables individual schools and conferences to compete among themselves. There is no reason to believe that eliminating restraints on education-related benefits will “fundamentally transform the century-old institution of NCAA sports,” as Petition-ers claim. NCAA Pet. 5. Petitioners’ sky-is-falling rhetoric is neither true nor appropriate in the context of a petition for certiorari from a fact-bound applica-tion of well-established law.

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In the end, what Petitioners seek is nothing less than antitrust immunity. But they are making that request on the wrong side of First Street. If Congress believed there was a national interest in avoiding an-titrust oversight of anticompetitive behavior in col-lege athletics, it would have granted the NCAA’s re-peated requests for immunity. Yet it has declined to do so. To the contrary, Congress and many state leg-islatures have either adopted or are now considering proposals to require the NCAA and its members to roll back their restrictions on athlete compensation, recognizing the profound inequity of a system that enables conference executives, athletic directors, coaches, schools, television networks, and a host of others to make billions of dollars on the backs of young, often underprivileged players. One thing is clear, however: antitrust immunity for college sports is a question for the legislatures, not the courts. The current proposals pending in Congress and state leg-islatures—including the NCAA’s latest request for antitrust immunity—provide yet another reason for this Court to decline review.

For these and other reasons, certiorari is even more inappropriate in this case than it was in O’Bannon. This Court should deny review.

STATEMENT A. The Business of College Sports and the

NCAA’s Ever-Changing Definition of “Amateurism”

The NCAA is a private, membership-based organ-ization that, among other things, seeks to restrain economic competition in the multi-billion-dollar in-

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tercollegiate sports industry.1 It accomplishes this goal through agreements among its member schools, each of which compete horizontally, both on the field and off. This competition is particularly fierce in the relevant economic markets—the labor markets for Division I men’s and women’s basketball players and for football players in the FBS, formerly known as Division I-A.2 In these markets, schools compete for players’ services in exchange for packages of compen-sation and benefits. That competition is restrained by horizontal agreements among NCAA members, restricting the type and amount of compensation and benefits—including education-related benefits—that schools may offer in these markets.

Division I basketball and FBS football have be-come particularly lucrative enterprises, generating billions of dollars in annual revenue. For example, the total value of the NCAA’s current “March Mad-ness” basketball broadcasting contract, which extends through 2032, is $19.6 billion, while the FBS football conferences’ current multi-year deal with ESPN for the College Football Playoff is worth $5.64 billion. NCAA Pet. App. 68a. At the same time, each confer-

1 In addition to their NCAA membership, most schools are also members of one of the conferences, which serve as additional regulators and organizers of intercollegiate athletics. The con-ferences have authority in areas that overlap with NCAA rules, such as schedules and rules of the game, and in areas in which the NCAA does not have a role, such as the sale of the member schools’ combined media rights for the regular seasons. 2 The FBS represents the highest level of college football, con-sisting of the largest and most competitive NCAA programs. There are ten conferences and approximately 130 schools in the FBS. Eleven conferences are among Petitioners in this case; all but the Western Athletic Conference participate in FBS football.

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ence negotiates its own regular-season football and basketball contracts with broadcasters, with the larg-est conferences generating over $500 million in an-nual revenue. Id. at 68–69a (explaining that the Southeastern Conference “made more than $409 mil-lion in revenues from television contracts alone in 2017, with its total conference revenues exceeding $650 million that year”). These massive sums allow schools to spend lavishly, including on “seven-figure coaches’ salaries” and “palatial athletic facilities.” Id. at 17a. Yet the elite athletes in these sports—the ones whose talent and labor make it all possible—receive almost none of this revenue.

Although college athletics can be an avocation that complements and enhances student-athletes’ ed-ucational experiences, that could not be further from the truth in the multi-billion-dollar businesses that are today’s Division I and FBS football. With so much money at stake, “coaches and others in the Di-vision 1 ecosystem make sure that Student-Athletes put athletics first, which makes it difficult for them to compete for academic success with students more fo-cused on academics. They are often forced to miss class, to neglect their studies, and to forego courses whose schedules conflict with the sports in which they participate.” Id. at 53a (Smith, J., concurring). Indeed, the district court in this case affirmatively found that athletes in these markets face significant barriers that prevent their full integration into the educational experiences and campus life of other stu-dents. Id. at 109a–115a.

While FBS football and Division I basketball mir-ror their professional counterparts in nearly all re-spects—including by paying coaches and executives seven-figure salaries and playing games for television

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audiences in the midst of a pandemic—the NCAA continues to cling to the pretext of “amateurism,” in-sisting that the compensation and benefits available to student-athletes must be severely constrained to avoid “eliminating the procompetitive distinction be-tween college and professional sports”—which, it claims, would hamper consumer demand. NCAA Pet. 33. Yet the district court found—based on testimony by Petitioners’ own witnesses, among other evi-dence—that the critical factor that “drives demand” for college sports today is not the lack of compensa-tion but rather the athletes’ status as students at a particular school. NCAA Pet. App. 21a. As the dis-trict court explained, “[d]efense lay witnesses * * * testified that consumer demand for Division I bas-ketball and FBS football is driven by consumers’ per-ception that student-athletes are, in fact, students.” Id. at 107a.3

Despite this, NCAA members have adopted de-tailed compensation and benefit restraints that have nothing to do with requiring that athletes remain students. In fact, the district court found, as a factu-al matter, that the specific restraints at issue here—limits on benefits related to education—“do not ap-pear to be set * * * based on considerations of con-sumer demand.” Id. at 145a. Instead, the NCAA’s own representatives testified that the rules are based on “cost considerations.” Ct. App. ER641.

3 Critically, the student-athletes here do not challenge Petition-ers’ academic eligibility requirements. Further, the injunction concerns only the rules restricting competition for education-related benefits that schools may offer Division I basketball and FBS football players—benefits that actually enhance the ath-letes’ status and experience as students. NCAA Pet. App. 121a.

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The rest of the trial record confirms this. Over the years, the compensation and benefits available to student-athletes in Division I basketball and FBS football have changed and increased, reflecting fun-damental shifts in the NCAA’s view of “amateur-ism”—and yet there has been no negative impact on demand for college sports. Quite the opposite. This incongruence led the lower courts to find, as a factual matter, that in the present day, the NCAA’s rules “‘do not follow any coherent definition of amateurism.’” Id. at 19a (quoting district court).

This case does not represent the first time that the NCAA has defended its rules as essential to “am-ateurism” and preserving college sports, only to find that even without such rules, consumer demand re-mains as strong as ever. In Board of Regents, for ex-ample, the NCAA warned that competition among schools to sell their broadcast rights would pose an existential threat to amateurism and consumer de-mand.4 Today such competition flourishes and, as a result, college athletics generates billions in broad-cast revenue, without any negative impact on de-mand. In Law v. NCAA, the NCAA resisted allowing unrestrained competition among schools to compen-sate assistant basketball coaches, contending that it was contrary to the collegiate model.5 Today such competition is permitted, with assistant coaches often

4 468 U.S. at 119 (rejecting NCAA argument that restricting sale of broadcast rights was necessary “to preserve amateurism”). 5 134 F.3d 1010, 1021–24 (10th Cir. 1998) (rejecting NCAA’s proposed procompetitive justifications for restricting assistant coach salaries).

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earning millions,6 and demand still thrives. In White v. NCAA, the NCAA opposed allowing schools to com-pete with one another by offering full cost-of-attendance scholarships, calling such compensation “pay for play.”7 Today such competition is permitted; cost-of-attendance scholarships and even compensa-tion above the cost of attendance are pervasive, and demand still thrives. NCAA Pet. App. 19a–20a. And in O’Bannon, the NCAA decried payments to student-athletes in exchange for the use of their names, im-ages, and likenesses as “anathema to amateurism” and warned that such payments would “blur the clear line between amateur college sports and their profes-sional counterparts.”8 Today the NCAA—under pres-sure from state legislatures and Congress—has de-cided that such payments are consistent with its am-ateurism model and should be permitted.9

As this history and the factual record make clear, “amateurism” is a moving goalpost; it is whatever Pe-titioners say it is at any given time. In Division I basketball and FBS football, it is little more than a pretext. It is certainly not a Sherman Act concept, much less a get-out-of-jail-free card that insulates any particular set of NCAA restraints from scrutiny.

6 Between 2009 and 2015, for example, the salaries of assistant men’s basketball coaches increased by nearly 40%. C.A. ER701. 7 NCAA Mem. P. & A. in Supp. Summ. J. at 28, White v. NCAA, No. 06-cv-999 (C.D. Cal. Oct. 22, 2007), ECF No. 220. 8 Br. for NCAA at 57, O’Bannon v. NCAA, No. 14-16601 (9th Cir. Nov. 14, 2014), ECF No. 13-1. 9 See NCAA Board of Governors Federal and State Legislation Working Group, Final Report and Recommendations (Apr. 17, 2020), https://tinyurl.com/yxq8rtd9.

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B. District Court Proceedings Recognizing the immense economic disparity be-

tween the NCAA’s ever-growing FBS football and Di-vision I basketball enterprises and the student-athletes who drive them, a group of football players and men’s and women’s basketball players filed this suit against the NCAA and its largest athletic confer-ences, challenging the rules that restrict student-athlete compensation. The student-athletes contend-ed that without these restrictions, they would be compensated at a level more commensurate with the value they confer on their schools, conferences, and the NCAA.

While the case was pending, the Ninth Circuit is-sued its decision in O’Bannon—an antitrust chal-lenge brought against the NCAA (but not the confer-ences) by a class of current and former football and men’s (but not women’s) basketball players. These players challenged NCAA rules that prohibited com-pensation for the use of their names, images, and likenesses in game footage or videogames. As rele-vant here, O’Bannon reaffirmed what this Court and many others had held—that the NCAA’s rules are subject to antitrust challenge. Based on a careful re-view of the factual record in that case, the Ninth Cir-cuit affirmed an injunction permitting schools to use revenues generated from the use of athletes’ names, images, and likenesses to increase the NCAA’s schol-arship limit and fund athletes’ full cost of attend-ance—a federally defined measure of a student’s cost to attend school.

The O’Bannon parties each filed petitions for writ of certiorari, with the NCAA’s petition resting on vir-tually identical grounds as the petitions here. See,

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e.g., Pet. for a Writ of Certiorari, NCAA v. O’Bannon, No. 15-1388, 2016 WL 2866087, at 10 (U.S. May 13, 2016) (“O’Bannon Pet.”) (“the Ninth Circuit disre-garded Board of Regents”); id. at 10–11 (“the Ninth Circuit set aside the restraint because it was not the least restrictive one possible”) (emphasis in original); id. at 15–16 (“American Needle—citing Board of Re-gents—reaffirmed that restraints essential to a joint-venture product” should be upheld); id. at 16–18 (con-tending that the Ninth Circuit’s decision “departs from other circuits’ precedent,” which holds that “NCAA amateurism rules should be upheld without detailed rule-of-reason analysis (let alone a trial)”); id. at 26 (“The decision below will only increase the frequency of [antitrust] challenges” faced by the NCAA); id. at 27 (“The need for review is particularly strong given the nationwide scope and importance of college athletics”). Both parties’ petitions were de-nied. 137 S. Ct. 277 (2016).

Following the Ninth Circuit’s O’Bannon decision, Petitioners here moved for judgment on the plead-ings, arguing that O’Bannon foreclosed the claims in this case as a matter of res judicata. The district court denied the motion because, among other things, this case involves a different set of horizontal com-pensation restraints, and the factual record on com-petition in the relevant markets had changed sub-stantially since O’Bannon. The petitions here do not challenge that ruling.

After discovery, the parties cross-moved for sum-mary judgment. The district court again rejected Pe-titioners’ preclusion arguments. On the merits, the court granted summary judgment in favor of the players in part, finding no genuine issue of fact as to whether the challenged rules substantially restricted

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competition in the relevant markets. In rendering that decision, the court adopted—at the request of both parties—a market definition consisting of the national markets for athletes’ labor in Division I bas-ketball and FBS football. NCAA Pet. App. 75a–76a. (On appeal, Petitioners did not—and do not now—contest the court’s findings relating to anticompeti-tive effect and the relevant market.) As for the rest of the motion, the court found that triable issues re-mained at the second and third steps of the rule of reason.

After a ten-day bench trial—reflecting a starkly different factual record from any prior antitrust case concerning NCAA rules—the district court entered judgment in favor of the plaintiff classes. The court held that the limits on education-related benefits did not serve any procompetitive purpose, including the NCAA’s professed purpose of preserving the distinc-tion between college and professional sports. Id. at 109a. Specifically, the court found that the NCAA has defined its product as distinct from professional sports by ensuring that student-athletes are not al-lowed to receive unlimited, non-education-related cash compensation like professional athletes and that they maintain “student” status. Id. at 121a. Yet the NCAA continues to impose caps and prohibitions on education-related benefits that do not serve that pur-pose and do not preserve consumer demand—benefits like computers, science equipment, musical instru-ments, post-graduate scholarships, tutoring, study abroad, academic awards, and internships. Indeed, the court found as a factual matter that market com-petition to provide the best package of education-related benefits will only reinforce the perception

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that student-athletes are students—which, again, is the critical driver of consumer demand. Ibid.

Still, the court found that there “may” be a limited pro-competitive justification for “some” of the chal-lenged restraints, to the extent they preserve the dis-tinction between college and professional sports by preventing unlimited payments that are unrelated to education. Id. at 147a. But the court went on to find that the students had proven a less restrictive alter-native to achieve that goal—a system in which the restrictions on education-related benefits are elimi-nated, leaving individual conferences to decide whether and to what degree any demand-enhancing limitations on educational benefits are warranted at the conference level. Id. at 151a–159a.

As a remedy, the district court enjoined the NCAA from maintaining national rules capping education-related compensation and benefits, while otherwise leaving the NCAA as the legislator of its own rule-book. The injunction permits the NCAA to establish its own definition of “related to education” and allows individual conferences to impose their own, more stringent education-related compensation caps. Id. at 168a. It also requires the NCAA to permit schools and conferences to offer academic and graduation in-centive awards, with any cap on such awards set no lower than the amount the NCAA allows for athlet-ics-based awards. Id. at 168a–169a.

Following the decision, NCAA President Mark Emmert publicly lauded the injunction as “‘an inher-ently good thing’” and not in any way fundamentally inconsistent with the NCAA’s principles, as it would foster competition among conferences and schools “‘over who can provide the best educational experi-

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ence.’” Id. at 42a (Ninth Circuit decision, quoting As-sociated Press, Emmert: Ruling reinforced fundamen-tals of NCAA, ESPN (Apr. 4, 2019)).

C. The Ninth Circuit’s Opinion Reviewing the trial record in its entirety, the

Ninth Circuit panel unanimously affirmed the dis-trict court’s findings and injunction.

The court began by noting that “[a]ntitrust deci-sions are particularly-fact-bound” and affirmed the district court’s holding that O’Bannon had no preclu-sive effect on this case, which involved a fundamen-tally different factual record. NCAA Pet. App. 27a.

Next, the Ninth Circuit described the traditional rule of reason “three-step framework”:

(1) [the] Student-Athletes bear the initial bur-den of showing that the restraint produces sig-nificant anticompetitive effects within the rel-evant market; (2) if they carry that burden, the NCAA must come forward with evidence of the restraint’s procompetitive effects; and (3) [the] Student-Athletes must then show that any le-gitimate objectives can be achieved in a sub-stantially less restrictive matter.

Id. at 33a (citations and quotations omitted). The Ninth Circuit found the district court’s factual

and legal conclusions to be well-grounded at every step. At step one, it held that the “district court properly concluded that the Student-Athletes carried their burden” to show significant anticompetitive ef-fects, noting that the district court’s findings “have substantial support in the record.” Id. at 33a–34a (ci-tations and quotations omitted). At step two, the Ninth Circuit held that the district court “properly

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‘credit[ed] the importance to consumer demand of maintaining a distinction between college and profes-sional sports,’” while also finding that while “some of the challenged rules” may serve a procompetitive purpose, the limits on “‘non-cash education-related benefits’” do not. Id. at 34a–35a (quoting district court, emphasis in original). Finally, at step three, the Ninth Circuit confirmed that “it [w]as the Stu-dent-Athletes’ burden to make a strong evidentiary showing that their proposed [less restrictive alterna-tives] to the challenged scheme are viable”—that is, “virtually as effective as the challenged rules in achieving the only procompetitive effect” that Peti-tioners had shown. Id. at 40a, 66a. The district court had correctly allocated the burden of proof on this is-sue, rejecting two of the student-athletes’ three prof-fered “less restrictive alternatives.” Id. at 22a; see al-so id. at 46a (“The [district] court’s findings at step three are supported by the record, and certainly not clearly erroneous.”). As the Ninth Circuit explained, its assessment of the entire record led it to hold that “the district court properly applied the Rule of Rea-son in determining that the enjoined rules are unlaw-ful restraints of trade.” Id. at 7a.

Two days before the mandate was set to issue, Pe-titioners moved the Ninth Circuit for a stay, claiming they would be irreparably harmed if they were re-quired to permit additional education-related bene-fits. After the Ninth Circuit summarily denied the motion, Petitioners unsuccessfully sought a stay from this Court, based on the same arguments. The man-date issued on August 12, 2020.

Despite their claimed irreparable injury, Petition-ers waited until October 15—a full two months after

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the mandate, and the last possible day under the Court’s rules—to file their petitions.

REASONS FOR DENYING THE PETITIONS I. The decision below is entirely consistent

with this Court’s precedents. As in the NCAA’s petition in O’Bannon, Petition-

ers here incorrectly contend that Board of Regents prohibits a court from conducting a fact-based rule-of-reason inquiry for any rule they adopt in the name of “amateurism.” Compare AAC Pet. 20–21 and NCAA Pet. 17–18 with O’Bannon Pet., 2016 WL 2866087, at *17 (“Board of Regents and American Needle [v. NFL, 560 U.S. 183 (2010)] mean that NCAA rules that de-fine what it means to be an amateur or a student-athlete should be sustained in the twinkling of an eye—that is, at the motion-to-dismiss stage”) (citation and quotation omitted). According to Petitioners, Board of Regents established this rule to preserve their “‘ample latitude’” to oversee college sports. Compare NCAA Pet. 19 with O’Bannon Pet., 2016 WL 2866087, at *11.

This Court’s cases say no such thing. To the con-trary, the Board of Regents Court squarely held that NCAA rules are subject to antitrust scrutiny under the rule of reason. 468 U.S. at 103–04. Even Peti-tioners themselves describe Board of Regents that way, stating that “[i]n that case, this Court explained that because league sports are ‘an industry in which horizontal restraints on competition are essential if the product is to be available at all,’ NCAA rules should be evaluated for antitrust purposes under the rule of reason, rather than deemed illegal per se. 468 U.S. at 100–101.” NCAA Pet. 9; see id. at 17 (“This Court held in Board of Regents that NCAA rules

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would be evaluated under the rule of reason * * * .”). Applying the rule of reason, the Board of Regents Court ultimately ruled against the NCAA, holding that the restraint at issue was unreasonable in light of the specific facts found at trial. 468 U.S. at 120.

The district court here faithfully followed Board of Regents and applied the rule of reason to the facts. After holding that the complaint sufficiently stated a claim, the court supervised discovery, compiled an evidentiary record, evaluated the parties’ motions for summary judgment, found genuine issues of material fact, and held a two-week trial. Then the court issued a 102-page decision applying the rule of reason to the facts presented, finding that the challenged rules were anticompetitive and unlawful. The Ninth Cir-cuit appropriately reviewed this factual conclusion deferentially, finding no clear error. Again, this is precisely what happened in Board of Regents itself, in which this Court reviewed a lower court’s application of the rule of reason to a set of NCAA rules after a trial and affirmed an order enjoining them.

To be sure, Board of Regents also discussed the NCAA generally, commenting that the NCAA was perceived to play a “critical role in the maintenance of a revered tradition of amateurism in college sports.” 468 U.S. at 120. The Court also observed—notably, in an entirely different era in college sports—that it was “reasonable to assume that most * * * NCAA [rules] are justifiable means of fostering competition among amateur athletic teams and therefore procom-petitive.” Id. at 117. But nothing in Board of Regents indicates that the Court intended this observation to function as binding legal doctrine and to prevent judges decades into the future from evaluating whether such an “assum[ption]” remained “reasona-

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ble,” no matter how much the factual circumstances changed.

And changed they have. The facts in the relevant markets bear no resemblance to what the Board of Regents Court understood at that time about the NCAA and the tradition of “amateurism.” As dis-cussed above, the business of Division I basketball and elite football has grown exponentially in the last three decades, becoming a massive, multi-billion dol-lar industry on the backs of unpaid students who would obtain far more compensation for their labor in a competitive market. Moreover, the trial record be-low established that in the years since Board of Re-gents, the NCAA has abandoned “any coherent defini-tion” or tradition of amateurism in Division I basket-ball and FBS football, allowing significant changes in the compensation that schools are allowed to provide. NCAA Pet. App. 92a; see also id. at 144a (“amateur-ism, and amounts of permissible student-athlete compensation have changed materially over time”).

Petitioners’ position gains no more support from American Needle—a case that also formed the basis of their unsuccessful petition in O’Bannon. Compare NCAA Pet. 17 (quoting American Needle, 560 U.S. at 203) with O’Bannon Pet., 2016 WL 2866087, at *12 (same). In American Needle, a unanimous Court re-jected the NFL’s argument for antitrust immunity and held that the challenged acts were concerted ac-tivity subject to the rule of reason. 560 U.S. at 203. The Court explained that “[w]hen ‘restraints on com-petition are essential if the product is to be available at all,’ per se rules of illegality are inapplicable, and instead the restraint must be judged according to the flexible Rule of Reason.” Id. (quoting Board of Re-

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gents, 468 U.S. at 101). That is precisely what the courts did in this case.

To be sure, Board of Regents and American Needle observe that the rule of reason “‘can sometimes be applied in the twinkling of an eye’”—that is, without a “detailed analysis”—depending on “the concerted activity in question.” American Needle, 560 U.S. at 203 (quoting Board of Regents, 468 U.S. at 109 n.39). But this is far from a substantive presumption in the NCAA’s favor. In Board of Regents, the Court used the phrase “twinkling of an eye” to explain that some restraints may be so obviously anti-competitive that they can be summarily struck down. 468 U.S. at 109 n.39. And when the Court repeated that phrase in American Needle, it also specifically rejected the NFL’s plea for antitrust immunity, declining to pre-scribe a “twinkling of an eye” approach to the re-strictions in that case and instead remanding for a rule-of-reason analysis, with the observation that competition for “playing personnel” is an area where horizontal agreements must be subject to the rule of reason. 560 U.S. at 203. Neither of these cases es-tablishes a presumption in a sports league’s favor, and neither suggests that it would ever be error to apply the rule of reason on a full factual record, as the district court did here.

In any event, the Ninth Circuit here was not asked to (and did not) address any legal question about “presumptions” under Board of Regents or American Needle. Instead, it followed this Court’s di-rection and reviewed the district court’s factual appli-cation of the rule of reason for clear error, finding none. Petitioners may disagree with the courts’ fac-tual conclusions, but their disagreement does not warrant this Court’s review.

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II. The decision below does not implicate any conflict among the Courts of Appeals.

Petitioners similarly regurgitate the same argu-ments about the same alleged conflict of circuit au-thority that they raised in their unsuccessful O’Bannon petition. All but one of the decisions Peti-tioners cite for the purported split occurred before the O’Bannon petition and were cited there too. Compare NCAA Pet. 19–23 and AAC Pet. 23–25 with O’Bannon Pet., 2016 WL 2866087, at *16–18 (citing Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012); McCormack v. NCAA, 845 F.2d 1338 (5th Cir. 1998); Smith v. NCAA, 139 F.3d 180 (3d Cir. 1998)). The one exception is Deppe v. NCAA, 893 F.3d 498 (7th Cir. 2018), which, as discussed below, applied the rule articulated in Agnew and is thus a post-O’Bannon decision that applied pre-O’Bannon law. And, in any event, none of the cases relied upon by Petitioners presents any conflict with the Ninth Cir-cuit’s decision here.

In Smith, a case from the 1980s, the Third Circuit considered an NCAA rule that involved an athlete’s status as a student at the institution—a very differ-ent kind of rule than the ones at issue here. See 139 F.3d at 183 n.2 (quoting challenged NCAA rule). The court held that the rule did not “relate[] to the NCAA’s commercial or business activities” and thus it did not fall under the Sherman Act in the first place. Id. at 185–86. And—critically—the court confirmed that if the Sherman Act did apply, it “would analyze [the rule] under the rule of reason.” Id. at 186. Alt-hough the court proceeded to cite this Court’s then-recent observations in Board of Regents, it did not hold that Board of Regents controlled the disposition as a matter of law; it simply concluded that “the by-

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law [in question] so clearly survives a rule of reason analysis” that the claim could be resolved on a motion to dismiss. Id. at 187.

McCormack—the only decision in another circuit that addressed limits on compensation to players—also applied the rule of reason to a particular set of factual allegations. 845 F.2d at 1343. But the Fifth Circuit did not read Board of Regents to immunize the rule from antitrust scrutiny or to establish a pre-sumption in favor of any particular NCAA rule. It noted the NCAA’s argument on that point but found that it “need not address” the issue because of the sparsity of the plaintiffs’ allegations, which could not support a claim under the rule of reason. Ibid.

In Agnew, the Seventh Circuit theorized that there may be a presumption under Board of Regents that certain classes of NCAA rules are lawful, but it declined to apply any presumption to the NCAA rules before it, which limited the number and length of ath-letic scholarships. 683 F.3d at 343–44. The court reasoned that such rules “are not inherently or obvi-ously necessary for the preservation of amateurism, the student-athlete, or the general product of college football.” Id. at 344. While the NCAA argued that such rules are necessary for parity between more wealthy and less wealthy schools, the court rejected that argument, noting that the claim was “weakened” by the then-recent genesis of those rules and the fact that they were recently rescinded. Ibid. In the court’s assessment, the challenged rules—like the ones at issue here—“seem[ed] to be aimed at contain-ing university costs, not preserving the product of col-lege football.” Ibid. Thus, the court declined to apply any presumption of lawfulness at the pleading stage, explaining that the NCAA’s argument was “far too

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great a leap to make without evidentiary proof at the full Rule of Reason stage.” Ibid.

The only post-O’Bannon case cited by Petitioners is Deppe, in which the Seventh Circuit explicitly ap-plied the rule it had previously set out in Agnew. 893 F.3d at 503–04. Thus, while the decision in Deppe is new, the Seventh Circuit’s approach is not. And, crit-ically, the kinds of NCAA rules at issue in Deppe were even further afield from the rules challenged here than the rules in Agnew were. Compare Deppe, 493 F.3d at 502 (rule requiring athlete to spend a year enrolled at institution before being eligible to participate in athletics) with Agnew, 683 F.3d at 344 (rules limiting number and extent of scholarships). Because the eligibility rule in Deppe was academics-driven, the Seventh Circuit applied the presumption of lawfulness it had outlined in Agnew but had de-clined to apply in that case. 893 F.3d at 502.

Still, it is wrong to say that this case “would have come out differently if decided by the Seventh Cir-cuit.” AAC Pet. 24. The rules at issue here are far more like the ones at issue in Agnew, which related to scholarships—an education–related benefit that con-ferences or schools may choose to provide. Further, as in Agnew, the rules here “seem to be aimed at con-taining university costs, not preserving the product of college football.” 683 F.3d at 344; see NCAA Pet. App. 145a, 148a–149a n.42 (challenged rules were based not on consumer demand but on cost). Thus, there is every reason to believe that the Seventh Circuit would agree with the Ninth that the rules in this case are subject to a full, rigorous analysis under the rule of reason. Indeed, these are exactly the type of anti-competitive agreements for which no procompetitive presumption would ever be proper. See P. Areeda &

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H. Hovenkamp, Antitrust Law: An Analysis of Anti-trust Principles and Their Application, ¶ 1902a (4th ed. 2018) (explaining that “[h]orizontal agreements are antitrust’s most ‘suspect’ classification, which as a class provoke harder looks than any other ar-rangement,” and referring to “naked price fixing” as one of “the most threatening circumstances” to free competition).

Nor is there any inconsistency between the deci-sion below and the Third Circuit’s decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57 (3d Cir. 2010), cited in NCAA Pet. 3–4. The Race Tires decision does not suggest antitrust im-munity, as Petitioners suggest; instead, it confirms that sports sanctioning bodies are required to prove “good faith, sufficient pro-competitive or business jus-tifications” for their rules, based on the facts of the case. Id. at 81. Moreover, the Third Circuit explicit-ly warned against “establish[ing] an overly broad rule detached from the specific facts” because of the “high-ly fact-specific nature of the antitrust standards.” Id. at 80. This is the opposite of establishing some kind of presumption.

Finally, even if there were some tension among the circuits—and there is none—this case would be a poor vehicle for resolving it. The Ninth Circuit was never asked to rule on whether the rules challenged here should have been afforded a presumption of law-fulness rather than analyzed under the rule of rea-son. And, again, the rules in this case are far more like Agnew’s limits on scholarships—to which the Seventh Circuit refused to apply any presumption—than they are like Deppe’s year-in-residence rule. Thus, if there is any real disagreement between the Seventh Circuit and the Ninth—and the cases thus

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far do not reflect one—that disagreement would not make a difference in this case. III. The decision below faithfully applied the

rule of reason framework. Contrary to Petitioners’ assertions (e.g., AAC Pet.

15–19), the Ninth Circuit carefully applied the tradi-tional rule of reason framework based on well-established precedent. As this Court recently reaf-firmed, the rule of reason involves a “three-step, bur-den shifting framework”:

[T]he plaintiff has the initial burden to prove that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market. If the plaintiff carries its burden, then the burden shifts to the defend-ant to show a procompetitive rationale for the restraint. If the defendant makes this showing then the burden shifts back to the plaintiff to demonstrate that the procompetitive efficien-cies could be reasonably achieved through less anticompetitive means.

Ohio v. American Express Co., 138 S.Ct. 2274, 2284 (2018) (citations omitted).

Petitioners’ only legal objection to the Ninth Cir-cuit’s analysis is their suggestion that it “effectively requir[ed] defendants to prove that they had adopted the least restrictive alternative that would preserve college sports.” AAC Pet. 15. But the Ninth Circuit did no such thing. Instead, it held unequivocally that it was the “Student-Athletes’ burden to make a strong evidentiary showing” on less restrictive alternatives. NCAA Pet. App. 40a (emphasis added, quotation omitted). It further held that a court may “invalidate a restraint and replace it with [a less restrictive al-

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ternative] only if the restraint is ‘patently and inex-plicably stricter than is necessary to accomplish all of its procompetitive objectives’”—and that Plaintiffs bore the burden to demonstrate that a significantly less restrictive alternative was available. Id. at 33a (citation and quotation omitted).

Applying the traditional standard, the court held that “the district court reasonably concluded that market competition in connection with education-related benefits will only reinforce consumers’ percep-tion of student-athletes as students, thereby preserv-ing demand.” Id. at 43a. That conclusion was based on the district court’s detailed factual findings, in-cluding that the “NCAA’s ‘own witnesses’ testified that ‘consumer demand for [D1] basketball and FBS football is driven largely by consumers’ perception that student-athletes are, in fact, students.’” Ibid. (al-teration in original).

Again, the Ninth Circuit did not establish any new legal principle; this is the same test that the court applied in O’Bannon and that this Court reaffirmed in Ohio v. American Express just two years ago. None of this presents any unsettled legal question that requires this Court’s review. IV. The decision below turns on fact-bound

conclusions after a lengthy bench trial. The nature of the Ninth Circuit’s decision further

undermines Petitioners’ request for certiorari. The decision does not set forth any new or remarkable principles of law. Instead, the only significant issues of law before the court had to do with Petitioners’ un-successful argument that the claims in this case were precluded by O’Bannon under principles of stare deci-sis and res judicata—issues that Petitioners have de-

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clined to raise here. See AAC Pet. 13 n.4. With respect to the petitions, then, all that is at

issue is the Ninth Circuit’s appropriately deferential review of the district court’s application of the rule of reason, based on the trial record in its entirety. This is an inherently fact-specific analysis. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) (discussing the “case-by-case adjudi-cation contemplated by the rule of reason”); Maple Flooring Mfrs.’ Ass’n v. United States, 268 U.S. 563, 579 (1925) (“[E]ach case arising under the Sherman Act must be determined upon the particular facts dis-closed by the record”). The facts may change over time, requiring a new evaluation. Leegin, 551 U.S. at 899 (Sherman Act’s prohibitions on restraints of trade “evolve to meet the dynamics of present eco-nomic conditions”); Areeda & Hovenkamp, supra, ¶ 1205c3 (“[C]ontinuing contracts in restraint of trade * * * are typically subject to continuing reexamina-tion,” and “even a judicial holding that a particular agreement is lawful does not immunize it from later suit or preclude its reexamination as circumstances change.”).

On its face, the Ninth Circuit’s decision expressly turned on “deferen[ce]” to specific factual findings and an “examin[ation of] the record ‘in its entirety.” NCAA Pet. App. 44a (citation omitted). This was en-tirely appropriate—and, in any event, involves fact-based decisionmaking not appropriate for this Court’s review. V. The decision below has no implications

for joint ventures. Petitioners insist that absent review by this

Court, the decision below “endors[es] an antitrust

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standard that puts at risk many legitimate and pro-competitive joint ventures.” AAC Pet. 27; see also NCAA Pet. 29 (the decision below “will have sweeping detrimental consequences for college sports and joint ventures more generally”). Not so. Far from being a “joint venture,” Petitioners and their member schools are direct, horizontal competitors in the relevant markets at issue in this case—the labor markets in Division I basketball and FBS football.

The relevant antitrust markets in this case were identified based on undisputed evidence at the sum-mary judgment phase and left unchallenged by Peti-tioners on appeal. They are the “national markets for Plaintiffs’ labor in the form of athletic services in men’s and women’s Division I basketball and FBS football, wherein each class member participates in his or her sport-specific market.” NCAA Pet. App. 137a. “In these markets, the class-member recruits sell their athletic services to the schools that partici-pate in Division I basketball and FBS football in ex-change for grants-in-aid and other compensation and benefits.” Id at 137a–138a.

In these markets, the NCAA’s members are com-petitors, not joint venturers producing a common product. Petitioners point to no findings in the record establishing that the NCAA’s thousands of disparate and diverse members comprise a joint venture in the relevant labor markets. Indeed, the term “joint ven-ture” cannot be found in either the district court’s or Ninth Circuit’s decisions.

As this Court observed about the NFL in Ameri-can Needle,

[t]he fact that [NCAA schools] share an inter-est in making the entire league successful and

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profitable, and that they must cooperate in the production of scheduling of games, provides a perfectly sensible justification for making a host of collective decisions. But the conduct at issue in this case [that is, agreements to con-strain horizontal competition] is still concerted activity under the Sherman Act that is subject to § 1 analysis.

560 U.S. at 202–03; see also Board of Regents, 468 U.S. at 113–14 (rejecting NCAA’s proffered justifica-tion “that its television plan constitutes a cooperative ‘joint venture’ which assists in the marketing of broadcast rights and hence is procompetitive”); Law, 134 F.3d at 1018 n.10 (rejecting NCAA’s proffered “joint venture” defense in antitrust challenge to NCAA rules capping compensation for assistant coaches). Further, even if the decision below somehow did relate to the antitrust treatment of joint ventures, the NCAA’s concern about it is misplaced. It is already well established that joint venture agreements are susceptible to antitrust challenge and must be ana-lyzed under the rule of reason. As this Court has ex-plained, because “[j]oint ventures * * * are [] not usu-ally unlawful,” these agreements should not be held per se illegal but rather “should be subjected to a more discriminating examination under the rule of reason.” Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1, 23–24 (1979) (noting the agreements “may not ul-timately survive that attack”).

Finally, and again, the NCAA raised these same supposed joint venture concerns in its unsuccessful O’Bannon petition. E.g., 2016 WL 2866087, at *3 (“The Ninth Circuit’s ruling jeopardizes the vitality of

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not only the NCAA and other amateur sports leagues, but also joint ventures more generally”). They are no more worthy of this Court’s review today. VI. The ongoing legislative efforts in this

area make this case particularly unsuitable for review.

Finally, even if there were some need for clarifica-tion in the antitrust laws as they apply to NCAA rules, this would be the wrong time for the Court to weigh in, given the ongoing legislative efforts in this area. In recent months, federal and state legislatures have either enacted or considered laws that would allow student-athletes to be paid for the use of their names, images, and likenesses. Five states have al-ready passed such laws, with Florida’s scheduled to go into effect on July 1, 2021. And numerous other states have considered or are considering similar bills. Congress is also heavily involved, with bills currently pending in both the House and the Senate, and hearings on student-athlete compensation held by two Senate committees in just the past several months.

Petitioners are actively participating in this legis-lative process—even proposing their own legislation. See Ltr. from Power Five Comm’rs to Cong. Leader-ship at 1 (May 23, 2020)10 (“We share the view that federal legislation should be enacted to permit Divi-sion I student-athletes to pursue payment from third parties for NIL licensing.”); R. Dellenger, NCAA Pre-sents Congress with Bold Proposal for NIL Legisla-

10 https://assets.documentcloud.org/documents/6933292/Power-Five-letter-to-Congress.pdf.

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tion, SPORTS ILLUSTRATED (July 31, 2020)11 (discuss-ing the NCAA’s proposed Intercollegiate Amateur Sports Act of 2020). Indeed, despite their strenuous opposition in O’Bannon to compensation for the use of players’ names, images, and likenesses, Petitioners have now reversed course and embraced such com-pensation and are expected to permit it as soon this winter. With the definition of “amateurism” in a state of flux and the legislative branch already active-ly engaged, certiorari would be particularly inappro-priate.

Petitioners’ legislative proposals also advocate for effectively the same antitrust immunity that they seek from this Court. See May 23 Ltr. at 1 (proposing that federal legislation include “protection from po-tential legal liability under antitrust and other laws”). One currently pending Senate bill has a safe harbor for the NCAA and its members. See Fairness in Collegiate Athletics Act, S.4004, § 4(b) (2020) (ex-cept for enforcement by the Federal Trade Commis-sion, “no cause of action shall lie or be maintained in any court against any intercollegiate athletic associa-tion, or any institution of higher education which is a member of such association for the adoption or en-forcement of a policy, rule, or program established under” the proposed legislation).

In the end, whether through changes by the NCAA’s members, by Congress, or by state legisla-tures, the “amateurism” model is once again in the midst of a paradigm shift. Even if certiorari were

11 https://www.si.com/college/2020/07/31/ncaa-sends-congress-nil-legislation-proposal.

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otherwise warranted, this would be the wrong time for the Court to intervene.

CONCLUSION The courts below applied the well-established rule

of reason to a particular set of facts, finding—based on a full trial record—that the agreement of NCAA members to restrict education-related benefits is an unreasonable restraint of trade. Petitioners’ argu-ment essentially seeks antitrust immunity—a re-quest that should be directed to Congress, not to this Court. The writ should be denied.

Respectfully submitted.

STEVE W. BERMAN CRAIG R. SPIEGEL EMILEE N. SISCO Hagens Berman Sobol Shapiro LLP 1301 Second Ave., Ste. 2000 Seattle, WA 98101 BRUCE L. SIMON BENJAMIN E. SHIFTAN Pearson, Simon & Warshaw LLP 350 Sansome St., Ste. 680 San Francisco, CA 94104 ELIZABETH C. PRITZKER JONATHAN K. LEVINE BETHANY L. CARACUZZO Pritzker Levine LLP 1900 Powell St., Ste. 450 Emeryville, CA 94608 NOVEMBER 9, 2020

JEFFREY L. KESSLER DAVID G. FEHER DAVID L. GREENSPAN Winston & Strawn LLP 200 Park Avenue New York, NY 10166 LINDA T. COBERLY Counsel of Record Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601 (312) 558-5600 lcoberly@winston.com JEANIFER E. PARSIGIAN Winston & Strawn LLP 101 California Street San Francisco, CA 94111